SERAPHIM vs. AMUA-SEKYI [1962]DLHC1708

Date	1962-05-07
Suit No.
Citation No.	[1962]DLHC1708

OLLENNU J.

P.F. O. ANTESON FOR R. BANNERMAN FOR THE PLAINTIFF.

K.OHENE-AMPOFO FOR THE DEFENDANT.

[1962]DLHC1708
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">SERAPHIM <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">AMUA-SEKYI <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1962] 1 GLR 328<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 7TH MAY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

P.F.
O. ANTESON FOR R. BANNERMAN FOR THE PLAINTIFF.<o:p></o:p>

K.OHENE-AMPOFO
FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU J.<o:p></o:p>In this suit the plaintiff claims an order for recovery of
possession, injunction, and damages for trespass; the said claims are in
respect of two pieces or parcels of land separated by a proposed road, which
are fully described in paragraphs (i) and (ii) of the endorsement on his writ
of summons, and delineated on a plan tendered in evidence as exhibit E. The
said pieces of land are situate at Abose Okai, and form portion of Abose Okai,
otherwise known as Opete Kpakpo, lands. The said Abose Okai or Opete Kpakpo
lands were in a suit Nii Ayikai II v. Nii Abossey Okai II declared the property
of the Akumadjey stool by a judgment of the Land Court1(1) affirmed by a
judgment of the West African Court of Appeal,2(2) and upheld by the Privy
Council.3(3) The Privy Council judgment is exhibit J in this suit.<o:p></o:p><o:p>&nbsp;</o:p>By two deeds of conveyance, exhibits G and F, the first dated the
22nd February, 1947, and registered as No. 1167/1947, the second dated the 24th
February, 1947, and registered as No. 1168/1947, the Akumadjey stool conveyed
the said pieces of land separately to one Edward John Bruce, P.W.4 and one John
Cofie Parry, P.W.5 respectively. By a deed of conveyance, exhibit B, dated the
4th October, 1947, registered as No. 23/1948, the said Edward John Bruce as
vendor jointly with Nii Ayikai II, Akumadjey Mantse, as confirming party,
conveyed the one piece of land to the plaintiff, while the said John Cofie
Parry as vendor and the said Nii Ayikai II as confirming party, by deed exhibit
C, also dated the 4th December, 1947, and registered as No. 24/1948, jointly
conveyed the other parcel of land to the plaintiff.<o:p></o:p>The plaintiff fenced in each of the two pieces of land with
concrete pillars and barbed wire; he also erected an iron sheet structure on
the western piece of the land and placed a watchman in charge. The plaintiff
instituted this action because the defendant entered upon a portion of the
eastern block of land, put pillars thereon and sold a portion of it to one
Kwamivi who commenced erecting a building thereon.<o:p></o:p><o:p>&nbsp;</o:p>The defendant too claims ownership of the land by virtue of a
conveyance thereof made to him by one Madam Naa Korkoi Abose, D.W. 1, under a
deed of conveyance, exhibit 1, dated the 3rd September, 1960. He has
counterclaimed for declaration of his title to the land so granted and conveyed
to him which land is fully described in paragraph 7 of his statement of defence
and counterclaim.<o:p></o:p><o:p>&nbsp;</o:p>For the plaintiff it was submitted that his action being in
trespass, he can succeed against the whole world upon proof of possession; the
case of England v. Palmer4(4) was cited in support. That submission is a well
established proposition of law. A person in possession can successfully
maintain an action for trespass against the whole world except the person
proved to be the true owner. But possession means effective possession; a
person who enters upon land which is apparently already in the possession of
another person, cannot in law be said to have that possession which will
entitle him to the benefit of the proposition of law. Therefore where the
possession relied upon has not been effective or where it is one which has been
disputed, a plaintiff to succeed in an action for trespass against another
person who also claims to be in possession cannot succeed unless he proves that
as between him and that other person, the right to immediate possession of the
land is vested in him.<o:p></o:p>Next where a plaintiff proves effective possession of land the
onus shifts upon the trespasser to prove that title to the land is vested in
him; that is, to prove that he, the trespasser, is the true owner.<o:p></o:p><o:p>&nbsp;</o:p>